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Are dealers ready for an ICE raid or audit?

January 22/29, 2018: Volume 33, Issue 16

By K.J. Quinn

 

If U.S. Immigration & Customs Enforcement (ICE) agents come knocking on your door, don’t be caught with your pants down. Preparing for ICE raids or audits before the incidents occur is critical to keeping a business afloat. Thus, it is imperative for employers to maintain proper records and supporting documentation to ensure compliance, legal experts say.

“ICE has signaled that it means business,” said F. Keith Covington, a partner at Bradley Arant Boult Cummings LLP, a North Birmingham, Ala.-based law firm. “Employers would be wise to make sure their immigration compliance is in order.”

The warning shot was fired back in 2017, when ICE reportedly stepped up the number of audits and raids at various businesses across the country. “It is anticipated the Immigration and Customs Enforcement will increase audits of employers’ I-9 compliance and workplace raids,” said Jeff King, World Floor Covering Association legal counsel and a partner at JWKing & Associates, Delray Beach, Fla. “It is key employers understand their rights and obligations to protect themselves from improper audits or raids and ensure they do not violate their obligations.”

The key to surviving an ICE raid and ICE audit is to be prepared before either event happens. This requires, among other things, I-9 forms that are complete and in compliance with the law. “Employers need to understand the integrity of their employment records is just as important to the Federal government as the integrity of their tax files or banking records,” said Danielle Bennett, an ICE spokesperson. “All industries, regardless of size, location and type, are expected to comply with the law.”

It can be relatively easy for undocumented workers to provide acceptable looking I-9 documentation and pass the employment verification process. “Moreover, once an individual has made it into a company in this manner, he or she may advertise the company to other undocumented workers,” said David Jones, an attorney at Fisher & Phillips, Memphis, Tenn., a national labor and employment law firm. “In the event of an audit or raid, a company that believed all of its workers were lawful can suddenly be without a workforce.”

Legal experts advise employers to conduct an internal audit so they can review data, check compliance and take any corrective measures before ICE comes calling. “ICE tends to be very gentle on employers who take corrective action before they audit a worksite,” said Davis Bae, regional managing partner at Fisher & Phillips’ Seattle office. “By going through and auditing the I-9s, you can frequently make ICE’s job easier, which could result in them lessening or even waiving fines.” Internal audits can be conducted by an HR consultant, attorney or other third party who is not involved with the employer’s day-to-day I-9 process.

For technical or procedural violations, such as minor errors on forms, an employer is given 10 business days to make corrections. “The idea is to make any necessary corrections in a transparent manner,” Covington said, “not in a way that might look like the employer is trying to hide the fact the errors existed originally.” The Department of Justice and ICE have published a joint guidance for employers conducting internal Form I-9 audits.

Employers should also ensure the people responsible for I-9 compliance are properly trained, legal experts say, so mistakes can be avoided upfront and they are capable of spotting issues and fraudulent documents. Law firms are among the sources that can provide guidance on I-9 form preparation and completion as well as reviews of I-9 records. “Employers may also want to consider utilizing E-Verify if they are not already required to do so by state or local law,” Covington said, referring to the Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. While E-Verify is not foolproof, it is much harder and less common for someone to make it through with a stolen identity.

 

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Increased immigration enforcement could hurt already weak labor pool

January 22/29, 2018: Volume 33, Issue 16

By K.J. Quinn

 

As the first year of the Trump administration comes to a close, major changes in U.S. immigration policy are impacting the workforce across many industries. Enforcement efforts are being stepped up to ensure employers are not hiring unauthorized workers, moves that stand to have a significant impact on sectors where the labor pool is already shallow.

“The U.S. Immigration and Custom Enforcement’s (ICE) Homeland Security Investigations (HSI) has a vital responsibility to enforce the law and engage in effective worksite enforcement to reduce the demand for illegal employment and to protect the nation’s lawful workforce,” said Danielle Bennett, an ICE spokesperson. “HSI uses all available civil and administrative tools to penalize and deter illegal employment.” ICE can audit any business on a random basis or through tips from the public or other government agencies.

Immigration enforcement efforts under the Trump administration ramped up in 2017, resulting in the arrests of nearly 111,000 people by ICE officials between Jan. 20 and Sept. 30, a 42% increase compared to the same 2016 period, according to published reports. “It appears these audits are about to occur with a lot more frequency,” noted F. Keith Covington, a partner at Bradley Arant Boult Cummings LLP, a North Birmingham, Ala.-based law firm.

ICE’s aggressive worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves. “Tom Homan [ICE’s acting director]  has directed HSI to step up its efforts in this area,” Bennett said, “to include pursuing more investigations and conducting more I-9 audits.” The Employee Eligibility Form, or

I-9, is the means for documenting an employee’s ability to work in the U.S.

Further driving increased I-9 enforcement and ICE raids is the ending of programs such as Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA), the latter of which allowed some young immigrants to gain temporary legal status and protection from deportation. The clock is ticking as the protected status ends March 5, putting their worker permits at risk.

“By ending DACA, the [Trump] administration will slowly be taking 800,000 workers out of the workforce,” said David Jones, an attorney at Fisher & Phillips, Memphis, Tenn., a national labor and employment law firm. “Similarly, the possible ending of TPS for various countries, including El Salvador, which includes 195,000 individuals, will have a similar impact on the workforce.”

Compliance with immigration law is crucial for all businesses, as fines for knowingly hiring and continuing to employ unauthorized workers are steep, ranging from $375 to $16,000 per violation, with repeat offenders receiving stiffer penalties. What’s more, “an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment, meaning the employer will be prevented from participating in future federal contracts and receiving other government benefits,” said Jeff King, World Floor Covering Association legal counsel and a partner at JWKing & Associates, Delray Beach, Fla.

Impacts on the flooring labor pool
The number of foreign-born workers rose to 27 million in 2016 and represents nearly 17% of the nation’s labor force, the National Bureau of Labor Statistics reports. But considering an estimated 11 million unauthorized immigrants live in the U.S., there is a fair chance an employer has undocumented workers. “Typically, companies in manufacturing, hospitality, construction and public safely are targets,” said Davis Bae, regional managing partner at Fisher & Phillips’ Seattle office. “While most audits are random, some occur based upon leads to ICE.”

The increased I-9 enforcement and raids have a direct impact on industry, and flooring is no exception. Suppliers employ factory workers while flooring dealers and contractors maintain or subcontract installation crews. It is unknown how many of these workers are not U.S. citizens or are employed without documented identification.

“Employers verify using the I-9 form and verify with certain documents,” King explained. “Rules and deadlines are very strict, and a simple typo or improper correction can result in significant fines.”

All of this documentation is required to avoid the long arm of the law, as ICE raids can have a devastating effect on any business depending on the extent of the violations. “Raids impact work flow both at the factory and on job sites, regardless of whether a company has any undocumented workers,” Jones said. “Aside from just the disruption itself, lawful immigrants often fear the immigration authorities and may not come back to work.”

The installation community is particularly at risk. A 2015 report from the National Association of Home Builders (NAHB) estimated 41% of the country’s carpet, floor and tile installers and finishers were foreign born. “We don’t feel this issue is specifically a tile industry one as it affects the entire construction industry as well,” said Bart Bettiga, executive director, National Tile Contractors Association (NTCA). “We are seeing examples of workers in some states being stopped because of not having proper identification, so we expect this to begin to have an impact on our trade.”

The NAHB report also estimated 13% of construction workers’ birthplaces are undocumented, so it stands to reason a similar percentage applies to flooring installers. “Companies that have utilized labor in this way in the past, and who have not taken steps to get their employees and their subcontractors to provide legal documentation, will be the ones negatively affected,” Bettiga said.

Ways to ensure compliance
ICE works with the private sector to educate employers about their responsibilities to hire only authorized workers and how to accurately verify employment eligibility. “The ICE Mutual Agreement between Government and Employers (IMAGE) outreach program was created in 2006 as a joint government and private sector initiative designed to build cooperative relationships that strengthen hiring practices, encourage employer compliance and restore integrity to the immigration system,” ICE’s Bennett said. “The goal of the IMAGE program is to promote a culture of compliance among U.S. employers and reduce the employment of unauthorized workers through outreach, education and training.”

The flooring industry is attempting to educate the supply chain about this important issue in various ways. For example, TISE includes a session on immigration law and compliance. The WFCA published an article earlier this year on compliance with immigration obligations. “WFCA’s legislative group has floated an idea on Capitol Hill on creating a work visa program for industries that need immigrant labor, such as the construction industry,” King noted.

NTCA is encouraging members to work with state agencies and other construction associations to take advantage of programs available for training and recruitment. “Many of our members are hiring more employees and focusing on adding benefits and offering career advancement opportunities to retain their best workers,” Bettiga stated, noting NTCA’s online apprenticeship program serves as a vehicle for members to recruit new people into the trade and train them while working in the field. “Members who do subcontract their labor are taking the necessary steps to ensure these workers are properly documented as well.”